Amicus Curiae Brief — Matthew D. Sample, Petitioner v. United States

No. 18-759

IN THE

Supreme Court of the United States

MATTHEW D. SAMPLE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR NATIONAL ORGANIZATION FOR

VICTIM ASSISTANCE, NATIONAL CRIME

VICTIM LAW INSTITUTE, AND ARIZONA VOICE

FOR CRIME VICTIMS, INC. AS AMICI CURIAE IN

SUPPORT OF PETITIONER

ALAN E. SCHOENFELD

Counsel of Record

WILMER CUTLER PICKERING

HALE AND DORR LLP

7 World Trade Center

250 Greenwich Street

New York, NY 10007

(212) 230-8800

alan.schoenfeld@wilmerhale.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................... ii

INTEREST OF AMICI CURIAE .................................. 1

SUMMARY OF ARGUMENT........................................... 3

ARGUMENT........................................................................ 4

I.

CONGRESS HAS CLEARLY EXPRESSED ITS

INTENT THAT CRIME VICTIMS BE MADE

FINANCIALLY

WHOLE

THROUGH

RESTITUTION................................................................. 4

II. SENTENCING COURTS RETAIN DISCRETION

TO FAVOR, IN APPROPRIATE CASES, THE

VICTIM’S RIGHT TO RESTITUTION OVER

THE NEED FOR AN IMMEDIATE CUSTODIAL

SENTENCE ..................................................................... 7

CONCLUSION ................................................................. 15

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Dolan v. United States, 560 U.S. 605 (2010) .................... 5

Gall v. United States, 552 U.S. 38 (2007) ..... 11, 12, 13, 14

Kenna v. United States District Court for the

Central District of California, 435 F.3d

1011 (9th Cir. 2006)....................................................... 6

Koon v. United States, 518 U.S. 81 (1996) ..................... 11

Pepper v. United States, 562 U.S. 476 (2011) ................ 11

Rita v. United States, 551 U.S. 338 (2007) ..................... 12

Tapia v. United States, 564 U.S. 319 (2011) .................... 7

United States v. Boccagna, 450 F.3d 107 (2d

Cir. 2006) ........................................................................ 5

United States v. Cole, 765 F.3d 884 (8th Cir.

2014) ............................................................................... 9

United States v. Copus, 110 F.3d 1529 (10th

Cir. 1997) ...................................................................... 11

United States v. Diambrosio, 2008 WL 732031

(E.D. Pa. Mar. 13, 2008) ............................................. 12

United States v. Goss, 325 F. Supp. 3d 932

(E.D. Wisc. 2018) ........................................................ 12

United States v. Kim, 364 F.3d 1235 (11th Cir.

2004) ............................................................................... 9

United States v. McIlvain, 967 F.2d 1479 (10th

Cir. 1992) ...................................................................... 11

United States v. Menyweather, 447 F.3d 625

(9th Cir. 2006)................................................................ 9

iii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Musgrave, 647 F. App’x 529

(6th Cir. 2016)................................................................ 8

United States v. Norton, 218 F. Supp. 2d 1014

(E.D. Wisc. 2002) ........................................................ 12

United States v. Pescatore, 637 F.3d 128 (2d

Cir. 2011) ........................................................................ 5

United States v. Rangel, 697 F.3d 795 (9th Cir.

2012) ............................................................................... 9

United States v. Robers, 698 F.3d 937 (7th Cir.

2012) ............................................................................... 5

United States v. Roper, 462 F.3d 336 (4th Cir.

2006) ............................................................................... 8

United States v. Tilga, 2012 WL 1192526

(D.N.M. Apr. 5, 2012) ................................................. 12

United States v. Tomko, 562 F.3d 558 (3d. Cir.

2009) ............................................................................... 9

STATUTORY PROVISIONS

18 U.S.C.

§ 3553 .............................................. 4, 8, 9, 10, 11, 12, 13

§ 3582 .............................................................................. 8

§ 3663 ............................................................................ 14

§ 3663A ........................................................................... 4

§ 3664 ........................................................................ 5, 10

§ 3771 .................................................................... 5, 8, 14

28 U.S.C. § 994 ................................................................... 10

Pub. L. No. 114-324, 130 Stat. 1948 (2016) ....................... 6

iv

TABLE OF AUTHORITIES—Continued

Page(s)

OTHER AUTHORITIES

150 Cong. Rec. 7294 (2004) ................................................. 5

Barnard, Jayne W., Allocution for Victims of

Economic Crimes, 77 Notre Dame L. Rev.

39 (2001) ......................................................................... 5

U.S. Government Accountability Office,

Federal Criminal Restitution: Most Debt

Is Outstanding and Oversight of

Collections Could Be Improved, GAO-18203 (2018) ................................................................... 6, 7

IN THE

Supreme Court of the United States

No. 18-759

MATTHEW D. SAMPLE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR NATIONAL ORGANIZATION FOR

VICTIM ASSISTANCE, NATIONAL CRIME

VICTIM LAW INSTITUTE, AND ARIZONA VOICE

FOR CRIME VICTIMS, INC. AS AMICI CURIAE IN

SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE1

National Organization for Victim Assistance

(NOVA) is the oldest victims’ rights and services organization in the world. Operating since 1975, NOVA

1

No counsel for a party authored this brief in whole or in

part, and no entity or person, other than amici curiae or their

counsel, made a monetary contribution intended to fund the preparation or submission of this brief. Counsel of record for the parties received notice of amici’s intent to file this brief at least ten

days before its due date. The parties have consented to the filing

of this brief.

2

promotes training for victim-advocates, provides direct

services to victims, and seeks to educate legislative, political, law enforcement, and community leaders on issues associated with victimization so that appropriate

and effective policies can be implemented.

As one of its services, NOVA provides a nationwide toll-free number (800-TRY-NOVA) for victims to

call directly for referrals, resources, and information to

enhance their awareness for making choices while seeking justice, remedy, and recovery. In addition to the

physical and emotional impact of crimes, victims commonly suffer significant financial harms. These harms

create urgent monetary needs for them and their loved

ones. NOVA accordingly has been actively involved in

efforts to expand restitution for crime victims.

The National Crime Victim Law Institute

(NCVLI) is a nonprofit educational and advocacy organization located at Lewis and Clark Law School in

Portland, Oregon. NCVLI’s mission is to actively promote balance and fairness in the justice system through

crime victim-centered legal advocacy, education, and

resource sharing. NCVLI accomplishes its mission

through education and training; promoting the National

Alliance of Victims’ Rights Attorneys; researching and

analyzing developments in crime victim law; and litigating as amicus curiae issues of national importance regarding crime victims’ rights in cases nationwide.

Arizona Voice for Crime Victims, Inc. (AVCV) is

an Arizona nonprofit corporation that works to promote

and protect crime victims’ interests throughout the

criminal justice process. To achieve these goals, AVCV

empowers victims of crime through legal advocacy and

social services. AVCV also provides continuing legal

3

education to the judiciary, lawyers, and law enforcement. AVCV seeks to foster a fair justice system which

(1) provides crime victims with resources and information to help them seek immediate crisis intervention,

(2) informs crime victims of their rights under the laws

of the United States and Arizona, (3) ensures that

crime victims fully understand those rights, and

(4) promotes meaningful ways for crime victims to enforce their rights, including through direct legal representation. A key part of AVCV’s mission is working to

give the judiciary information and policy insights that

may be helpful in the determination of victims’ rights

issues. AVCV regularly seeks restitution on behalf of

crime victims who have suffered an economic loss as a

result of a criminal offense. Additionally, AVCV has

litigated issues related to restitution.

Amici are participating in this case because of the

important issues it raises regarding whether crime victims’ rights, including the rights to be heard and secure

restitution, are meaningfully weighed in the sentencing

process.

SUMMARY OF ARGUMENT

Congress has established a robust regime to afford

and protect victims’ rights in the federal criminal justice system. Central to that regime is a set of statutes

that provide that victims have a right to be participate

at sentencing, and that courts are mandated to enter

restitution orders where a defendant’s offense of conviction has resulted in compensable harm to a victim.

The central promise of those statutes—that victims’

voices are heard in the sentencing process and their

rights and interests are considered as part of the administration of justice—is empty if courts are preclud-

4

ed from considering as part of sentencing whether and

how defendants will be able to make good on their restitutionary obligations.

As this Court has repeatedly confirmed, sentencing

courts retain discretion to weigh the factors enumerated in the Sentencing Reform Act in fashioning an appropriate punishment. Among those factors is “the

need to provide restitution to any victims of the offense.” 18 U.S.C. § 3553(a)(7). Congress thus has made

clear its direction to sentencing courts to consider not

only the award of restitution but also the actual provision of that restitution. In appropriate cases, the sentencing court retains full discretion to consider the interests of the victims, and their statutory entitlement

to restitution, in sentencing defendants. This case presents a critical question as to the viability of Congress’

statutory and sentencing scheme.

ARGUMENT

I.

CONGRESS HAS CLEARLY EXPRESSED ITS INTENT

THAT CRIME VICTIMS BE MADE FINANCIALLY WHOLE

THROUGH RESTITUTION

Through a series of enactments dating back more

than thirty years, Congress has expressed its intent

that victims’ voices—including their requests for restitution—be meaningfully incorporated as elements of

criminal sentencing.

This is perhaps most clear in Congress’ passage in

1996 of the Mandatory Victims Restitution Act

(MVRA). By requiring that “the court may order …

that the defendant make restitution to the victim of

[the] offense,” 18 U.S.C. § 3663A(a)(1), the MVRA

marked a strengthening of previous statutory directives that left the entry of restitution orders up to the

5

discretion of the sentencing judge. See Dolan v. United

States, 560 U.S. 605, 612 (2010). “The MVRA’s overriding purpose is ‘to compensate victims for their losses.’”

United States v. Robers, 698 F.3d 937, 943 (7th Cir.

2012) (quoting United States v. Pescatore, 637 F.3d 128,

138 (2d Cir. 2011)), aff’d, 572 U.S. 639 (2013). “And because the MVRA mandates that restitution be ordered

to crime victims for the ‘full amount’ of losses caused by

a defendant’s criminal conduct, see 18 U.S.C.

§ 3664(f)(1)(A), it can fairly be said that the primary

and overarching purpose of the MVRA is to make victims of crime whole, to fully compensate these victims

for their losses and to restore these victims to their

original state of well-being.” Id. (quoting United States

v. Boccagna, 450 F.3d 107, 115 (2d Cir. 2006)) (cleaned

up).

In 2004, backed by near universal congressional

support for a “broad and encompassing” statutory victims’ bill of rights, 150 Cong. Rec. 7294, 7295 (2004)

(statement of Sen. Feinstein), Congress enacted the

Crime Victims’ Rights Act (CVRA). The CVRA gives

victims “the right to participate in the system.” Id. at

7297 (statement of Sen. Feinstein). Of particular relevance to this case, the CVRA gives victims “[t]he right

to be reasonably protected from the accused,” see, e.g.,

18 U.S.C. § 3771(a)(1); “[t]he right to reasonable, accurate, and timely notice of any public court proceeding,

or any parole proceeding, involving the crime or of any

release or escape of the accused,” id. § 3771(a)(2); “[t]he

right to be reasonably heard at any public proceeding in

the district court involving release, plea, sentencing, or

any parole proceeding,” id. § 3771(a)(4); and “[t]he right

to full and timely restitution as provided in law,” id.

§ 3771(a)(6).

6

As courts have recognized in implementing the

CVRA, the combination of victims’ procedural rights

and their right to restitution were meant to powerfully

vindicate not only their interests in being heard and in

being made whole, but also “to allow the victim ‘to regain a sense of dignity and respect rather than feeling

powerless and ashamed’” and “to force the defendant to

confront the human cost of his crime.” Kenna v. United

States Dist. Ct. for the Cent. Dist. of Cal., 435 F.3d

1011, 1016 (9th Cir. 2006) (quoting Barnard, Allocution

for Victims of Economic Crimes, 77 Notre Dame L.

Rev. 39, 41 (2001)).

Recognizing that statutory rights to “full and timely restitution” are illusory without effective enforcement and collection, Congress enacted the Justice for

All Reauthorization Act of 2016. Among other things,

the Act amended the restitution statutes to improve

the collectability of restitution awards, see Pub. L. No.

114-324, § 2, 130 Stat. 1948, 1949 (2016) (Crime Victims’

Rights amendments). It also directed the Government

Accountability Office (GAO) to assist Congress in its

efforts to vindicate victims’ rights and to secure restitution, by “conduct[ing] a study to determine whether

enhancing the restitution provisions … to provide

courts broader authority to award restitution for Federal offenses would be beneficial to crime victims and

what other factors Congress should consider in weighing such changes.” See id., 130 Stat. 1948, 1948-1949.

The GAO has issued a number of reports pursuant

to its statutory mandate, including most recently in

February 2018, Federal Criminal Restitution: Most

Debt Is Outstanding and Oversight of Collections

Could Be Improved, GAO-18-203 (2018). The report

starts by observing that “[t]he impact of crime on victims often has significant emotional, psychological,

7

physical, financial, and social consequences,” and that

“[o]ne of the goals of federal criminal restitution is to

restore victims of federal crimes to the position they

occupied before the crime was committed” by providing

compensation. Id. at 1. It goes on to explain that “[t]he

collection of federal criminal restitution has been a

longstanding challenge,” id. at 2, owing, in large part, to

the fact that some “offenders have little ability to pay

the debt,” id. at 26.

In short, Congress’s aspiration to make crime victims whole financially, and its consistent efforts to ensure that a victim’s right to restitution is meaningful,

all run to ground when a criminal defendant lacks the

capacity to pay. In cases where a defendant does have

the capacity to pay and a victim does seek restitution

for compensable harms, Congress’s intent is best

served by allowing the sentencing judge to devise a

sentence that meaningfully integrates the victim’s

rights by facilitating recovery of whatever restitution

is appropriate under the circumstances.

II. SENTENCING COURTS RETAIN DISCRETION TO FAVOR,

IN APPROPRIATE CASES, THE VICTIM’S RIGHT TO RESTITUTION OVER THE NEED FOR AN IMMEDIATE CUSTODIAL SENTENCE

As this Court has explained, the Sentencing Reform Act “channel[s] judges’ discretion by establishing

a framework to govern their consideration and imposition of sentences.” Tapia v. United States, 564 U.S.

319, 325 (2011). Under the Act, “a judge sentencing a

federal offender must impose at least one of the following sanctions: imprisonment (often followed by supervised release), probation, or a fine.” Id. The MVRA

and CVRA separately require imposition of a restitution order in appropriate cases. The Sentencing Re-

8

form Act accommodates those restitution orders by ensuring that, in fashioning an appropriate sentence—

including any sentence of imprisonment—the court

“consider[s],” among other things, “the need to provide

restitution to any victims of the offense.” 18 U.S.C.

§ 3553(a)(7); see also id. § 3582(a). In other words, the

Sentencing Reform Act explicitly requires sentencing

courts to consider the victim’s right to restitution, and

the defendant’s ability to pay it, in formulating an appropriate complement of sanctions.

The Tenth Circuit in the decision below adopted a

rule that categorically precludes a sentencing court

from considering the need to facilitate a victim’s right

to restitution when analyzing the propriety of a custodial sentence. Such a rule is contrary to statute, eviscerates the court’s independent duty to “ensure that

the crime victim is afforded the rights described in [the

CVRA],” 18 U.S.C. § 3771(b), and constrains the court’s

ability to consider whether the victim’s interests in restitution in a particular case counsel against incarceration (or in favor of a shorter period of incarceration).

See United States v. Roper, 462 F.3d 336, 339 (4th Cir.

2006) (“[T]he district court must consider the need to

provide restitution because, all else being equal, the defendant will be less likely to acquire the means to comply with a restitution order while incarcerated than

while working outside of prison. If the need to provide

restitution is great, this fact may weigh on the side of

continuing supervised release.”).

A majority of the circuits to address the issue have

agreed. See United States v. Musgrave, 647 F. App’x

529, 536 (6th Cir. 2016) (approving the district court’s

statement that “the goal of obtaining restitution for the

victims is best served by a non-incarcerated and employed defendant” as relevant to its consideration of

9

the § 3553(a) factors); United States v. Cole, 765 F.3d

884, 886 (8th Cir. 2014) (rejecting argument that “the

district court improperly based the sentence on Cole’s

socioeconomic status, her restitution obligations, and

her loss of criminally derived income”); United States v.

Menyweather, 447 F.3d 625, 634 (9th Cir. 2006) (en

banc) (noting that “the district court’s goal of obtaining

restitution for the victims of Defendant’s offense, 18

U.S.C. § 3553(a)(7), is better served by a nonincarcerated and employed defendant”). Though longer

prison terms neither should nor may be substitutes for

monetary penalties or an inability to pay restitution,

“[a] sentencing court is empowered to consider whether

the victims will receive restitution from the defendant

in varying from the Sentencing Guidelines based on

§ 3553(a) factors.” United States v. Rangel, 697 F.3d

795, 803 (9th Cir. 2012).2

2

Courts appropriately take account of a defendant’s efforts to

make restitution in numerous ways that affect their sentence. For

example, the Eleventh Circuit agreed with the Second, Third,

Fourth, Sixth, Seventh, Eighth, and Ninth Circuits that a defendant’s extraordinary efforts to make restitution was a permissible

basis for a downward departure. See United States v. Kim, 364

F.3d 1235, 1240 (11th Cir. 2004) (collecting cases). Similarly, in

United States v. Tomko, 562 F.3d 558, 570 (3d. Cir. 2009) (en banc),

the Third Circuit rejected the government’s argument that by

varying downward based on factors including the defendant’s employment record and extensive charitable contributions, the sentencing judge “permitted [the defendant] to buy his way out of

prison.” The court affirmed the district court’s conclusion that the

defendant’s restitution (and relatedly, the percentage of restitution paid) and charitable contributions were appropriate considerations at sentencing, rejecting the dissent’s analogy to cases

where courts rejected sentences that took account of the need to

make restitution as “nurtur[ing] the unfortunate practice of disparate sentencing based on socio-economic status.” Id. at 588

(Fisher, J., dissenting).

10

Contrary to the court of appeals’ professed concern

that accounting for restitution at sentencing would necessarily discriminate against defendants on the basis of

socioeconomic status, all defendants have some earning

capacity to pay back their victims. What matters for

purposes of sentencing is the need for immediate incarceration in a particular case as compared with the victim’s asserted right to restitution to recover from the

victimization. While courts are required to ensure that

their sentences do not yield disparities in “socioeconomic status,” 28 U.S.C. § 994(d), they are likewise required to attend to the “need” to make restitution to

defendants’ victims, 18 U.S.C. § 3553(a)(7). That requires, when a victim asserts a right to restitution, consideration of the degree of privation suffered by victims, not just the theoretical possibility that defendants

with some earning capacity—whether rich or poor—

might serve a noncustodial sentence.

The district court’s objective determination of

Sample’s ability to repay—in order to actually provide

restitution to his victims—refutes the Tenth Circuit’s

characterization of Sample’s salary as a proxy for his

socioeconomic status. The restitution determination

made by the sentencing judge was driven not by Sample’s wealth, but by his ability to pay back his victims

(there was comparatively little discussion of his overall

economic position at sentencing, simply his ability to

earn a high income). The district court appropriately

ordered “restitution to each victim in the full amount of

each victim’s losses as determined by the court and

without consideration of the economic circumstances of

the defendant.” See 18 U.S.C. § 3664(f)(1)(A). Whatever Sample’s overall economic circumstances—whether

he was born into poverty or wealth, whether he had assets or was indigent—the sentencing judge was correct

11

to consider his earning potential in crafting her decision

as “the potential for repayment cannot be based on

mere chance.” United States v. McIlvain, 967 F.2d

1479, 1481 (10th Cir. 1992). Rather, as even the Tenth

Circuit has recognized, the “court must consider a defendant’s ability to pay in determining what restitution

to grant victims.” United States v. Copus, 110 F.3d

1529, 1537 (10th Cir. 1997).

Not only is it appropriate to consider a defendant’s

ability to pay restitution when fashioning a sentence,

but a sentencing judge also has significant discretion

with which to weigh that ability in favor of a noncustodial sentence. In Gall v. United States, 552 U.S. 38

(2007), this Court explained the need for, and discretion

of, sentencing judges to balance the factors listed in the

Sentencing Reform Act and fashion an appropriate sentence. Because “‘every case [is] a unique study,’” id. at

52 (quoting Koon v. United States, 518 U.S. 81, 113

(1996)), while sentencing judges should “consider all of

the § 3553(a) factors to determine whether they support the sentence requested by a party,” this Court

tasked sentencing judges to “make an individualized

assessment based on the facts presented.” Id. at 49-50;

see also Pepper v. United States, 562 U.S. 476, 487-488

(2011) (noting “the principle that ‘the punishment

should fit the offender and not merely the crime’”).

Sentencing judges have significant discretion to do so,

and appellate courts must “consider the substantive

reasonableness of the sentence imposed under an

abuse-of-discretion standard.” Gall, 552 U.S. at 51.

While the extent of a departure from the Guidelines

may be considered, an appellate court “must give due

deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the

variance.” Id. This significant discretion stems from

12

the fact that “‘[t]he sentencing judge has access to, and

greater familiarity with, the individual case and the individual defendant before him than the Commission or

the appeals court.’” Id. at 51-52 (quoting Rita v. United

States, 551 U.S. 338, 357-358 (2007)). Therefore, so long

as the permissible factors have been considered and

reasonably balanced, a sentence should be held substantively reasonable.3

In appropriate cases, the balancing of statutory

considerations that a sentencing judge must undertake

may result in a noncustodial sentence to allow for payment of restitution along with other terms. That is fully consistent with Congress’s design and this Court’s

case law elucidating the contours of a sentencing

judge’s discretion. A judge may, when exercising his or

her discretion through “‘find[ing] facts and judg[ing]

their import under § 3553(a),” Gall, 552 U.S. at 52-53

(citation omitted), determine that, balanced against

other factors, the “need to provide restitution” favors a

3

Sentencing judges routinely, and properly, consider defendants’ ability to pay restitution in sentencing in an exercise of their

discretion under § 3553(a), whether or not noncustodial sentences

are ultimately imposed. See, e.g., United States v. Goss, 325 F.

Supp. 3d 932, 936 (E.D. Wisc. 2018) (noting that “a prison sentence

would harm the victim by causing defendant to lose her job and

thus her ability to pay restitution, a significant concern under

§ 3553(a)(7)” when sentencing the defendant); United States v.

Tilga, 2012 WL 1192526, at *3 (D.N.M. Apr. 5, 2012) (noting that

the court “does not discount the restitution that she paid” but

“does not believe that such restitution justifies a downward departure”); United States v. Diambrosio, 2008 WL 732031, at *5 (E.D.

Pa. Mar. 13, 2008) (considering how “[a] non-incarcerative sentence will enable Defendant to continue making payments on his

$2.1 million restitution obligation”); United States v. Norton, 218

F. Supp. 2d 1014, 1021-1022 (E.D. Wisc. 2002) (“Defendant owes a

substantial amount of restitution, which she will more easily be

able to pay while on probation rather than in prison.”).

13

noncustodial sentence in a particular case. See id. at 5657 (holding that the district court did not err in placing

great weight on one factor where the factor was of

“critical relevance” and distinguished the defendant

from the vast majority of similarly situated defendants).

Sample’s case is exemplary. At sentencing, the district court deliberately reviewed the factors enumerated in § 3553(a) and made a sentencing determination

unique to the facts of this case. See Pet. App. 45a (noting “other cases would be different”). The court

acknowledged the need to “promote respect for the

law” and to ensure that the sentence “reflect[s] the seriousness of the offense.” Pet. App. 53a. It also cited

Congress’s express explicit direction to consider “the

need to provide restitution to any victims of the offense.” Pet. App. 53a-55a, 59a-60a (citing 18 U.S.C.

§ 3553(a)). Viewing restitution as “a major motivator in

[its] decision,” the court ultimately concluded that “this

is a case where probation would give [Sample] the opportunity to keep working at [his] current job and get

these victims some measure of justice.” Pet. App. 45a,

59a; see also Pet. App. 33a (“I want you to keep your

job, because I want you to have a good job to pay these

victims back.”). That approach was fully consistent

with this Court’s case law prescribing the appropriate

methodology for reviewing the § 3553(a) factors and

imposing a reasonable sentence in light of Congress’s

intent. Importantly, that approach also honored Congress’s intention to provide “full and timely restitution”

to crime victims.

The Tenth Circuit reversed, disparaging the district court’s considered view that the needs of the defendant, his victims, and society were best served by a

noncustodial sentence that allowed Sample to more

14

timely make restitution to his victims. The court of appeals relied heavily on its conclusion that Sample’s noncustodial sentence did not properly reflect the seriousness of his crimes. That reasoning displaced the rights

and interest of Sample’s victims—which Congress had

rightly recognized through the MVRA and CVRA—

and failed to heed the sentencing judge’s recognition

that making restitution was an appropriate way to

force Sample to confront, daily, the seriousness of his

offense and the grave consequences for his victims—a

central purpose of Congress’s victim restitution statutes. See supra 18 U.S.C. §§ 3663, 3771. The $1 million

loss that Sample’s victims suffered came exclusively

from retirees and middle-class workers—people who, in

the sentencing judge’s view, “really needed the money.” See Pet. App. 36a-37a. Nothing about a noncustodial sentence for the express purpose of allowing Sample to make these victims whole derogates the seriousness of his crime. To the contrary, such a sentence is

manifestly appropriate because the victims’ need for

restitution is particularly weighty.

Noncustodial sentences entered for the purpose of

facilitating restitution—like Sample’s—can be highly

restrictive and reflect a crime’s seriousness while simultaneously giving victims an opportunity to be made

financially whole as quickly and completely as possible.

In fact, this Court in Gall recognized that stringent

probationary sentences can be severely restrictive and

adequate. Gall, 552 U.S. at 48.

Moreover, a restrictive probationary sentence satisfies the statutory requirement for just punishment in

this case. Punishment in the form of a stringent noncustodial sentence is just in Sample’s case because it

curtails his freedom while still allowing him to compensate his victims through restitution payments.

15

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ALAN E. SCHOENFELD

Counsel of Record

WILMER CUTLER PICKERING

HALE AND DORR LLP

7 World Trade Center

250 Greenwich Street

New York, NY 10007

(212) 230-8800

alan.schoenfeld@wilmerhale.com

JANUARY 2019